Slavica Popovic v DPG Services Pty Ltd T/A Opal Health Care
[2022] FWC 325
| [2022] FWC 325 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 – Unfair dismissal
Slavica Popovic
v
DPG Services Pty Ltd T/A Opal Health Care
(U2021/8927)
| Deputy President Lake | BRISBANE, 16 February 2022 |
Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.
On 6 October 2021, Slavica Popovic (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by DPG Services Pty Ltd T/A Opal Health Care (the Respondent). The Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.
Legislation
Section 399A of the FW Act provides:
“(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
Procedural background
This matter was listed for a staff conciliation to see if the matter could be resolved between the parties, however it could not take place. The matter was allocated to my Chambers on 25 October 2021 for determination of the merits of the application. A notice of listing and directions were sent from my Chambers on 1 November 2021 setting out dates by which the parties were to provide material in respect of the application and listing the matter for, inter alia, a Mention/Directions and Conference before me on 4 November 2021 at 12:00pm.
On 3 November 2021, my Chambers received an email from the Applicant asking that the hearing be cancelled as she would not be able to attend. My Associate called the Applicant and explained the purpose of the conference. The Applicant agreed that she would attend with her husband. The conference occurred but it became apparent that resolution of the matter was not possible.
Despite the directions issued by me on 1 November 2021 – which were attached in one of the Applicant’s replies (so she had clearly seen it) – requiring the Applicant to provide her material by 18 November 2021, no material has been received.
On 10 November 2021, a notice was issued listing the matter for hearing on 1 February 2022. That was sent to both parties, and most significantly, to the email address from which the Applicant had previously responded.
On 21 January 2022, my Chambers wrote to the Applicant confirming that nothing had been received from her since the conference. The email went on to require the Applicant to file her material and warned that if she failed to do so, the application may be dismissed. No response was received.
In the afternoon on 25 January 2022, the Respondent filed a Form F1 seeking that the Applicant’s application be dismissed as the Applicant had failed to meet the requirements to provide supporting evidence.
Some further correspondence was issued from my Chambers that admittedly confused the dates by which the Applicant had to file her material. I issued a decision on 31 January 2022 which dismissed the Applicant on the basis of the Applicant’s non-compliance. However, I accept there may have been some confusion caused by the erroneous correspondence. Accordingly, I revoked that decision. To remedy any confusion and to ensure the Applicant was afforded procedural fairness, my Chambers wrote to the parties on 31 January 2022 in the follow terms:
“Dear parties
I note that there was an error in my previous email. Instead of referring to 31 February 2022, of course it was intended to be 31 January 2022.
As a result of this error, the hearing remains scheduled for tomorrow 1 February 2022. If the Applicant does not attend, the application may be dismissed.”
The Applicant did not attend the hearing listed on 1 February 2022. The Respondent appeared but, without the Applicant’s attendance, the hearing did not proceed.
Again, to ensure the Applicant was afforded procedural fairness after the admittedly confusing correspondence, my Chambers wrote to the Applicant on 1 February 2022 in the following terms:
“Dear Ms Popovic
I refer to the above matter which was listed for hearing this morning at 10am. You first received notification of that hearing date on 10 November 2021. A second notice of listing was sent with a Microsoft Teams link yesterday.
You did not attend this morning. The Respondent appeared and the Commission was ready to proceed.
Given the errors in correspondence over the last week, and the decision that was issued on 31 January 2022 which has now been revoked, the Deputy President will allow you until 9am on 3 February 2022 to respond in writing to Chambers explaining your failure to comply with the Deputy President’s Directions to file material in support of your application, to respond to any of the emails sent from Chambers and to attend the hearing scheduled for this morning.
If no response is received by that time, your application may be dismissed pursuant to the application made by the Respondent.”
As at the time of making this decision, no response had been received.
Respondent’s submissions
In essence, the Respondent submits that the Applicant has not taken reasonable steps to comply with the Commission’s directions and file any material – beyond the Form F2 – in support if her application.
Consideration
The Applicant has failed to comply with multiple directions of the Commission requiring that material be filed in support of her application. I accept there may have been some confusion caused by correspondence from Chambers, however, the Applicant has failed to respond to every email following up same. She has been provided with ample opportunity to provide an explanation for her failure to do so but has not.
The non-attendance and subsequent lack of response to any correspondence from my Chambers has prompted the Respondent to make an application for the matter to be dismissed pursuant to s.399A of the Act. The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application and advised that a failure to do so may result in her application being dismissed. I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed.
Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
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